Single bench bail application under NDPS Act for accused charged with drug contraband. Court observed that assessment of voluntariness of consent is for trial, held non-compliance of Section 50 prima facie warrants bail release, and granted bail with stringent conditions.
Granted bail on personal bond and two sureties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 85
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5562 of 2023
Applicant :- Anup Kumar Jaiswal @ Shethi Opposite Party :- State of U.P. Counsel for Applicant :- Bindu Kumari Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for applicant, learned A.G.A. for the State and perused the record.
This bail application has been preferred by the accused-applicant, Anup Kumar Jaiswal @ Shethi, who is involved in Case Crime No.230 of 2022, under Section 8/20 of NDPS Act, Police Station- Obra, District- Sonbhadra.
Learned counsel for the applicant has submitted that applicant has been falsely implicated in the present case due to ulterior motive, on the basis of false and planted recovery of 1.5 kg ganja has been allegedly recovered from the applicant and there is no public witness of the alleged recovery. It is further contended that mandatory provision of Section 50 of N.D.P.S Act has not been complied with. At the stage of consideration of bail it cannot be decided whether offer given to the applicant and his consent obtained was voluntary. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie noncompliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of N.D.P.S. Act. The applicant has criminal history of 4 cases, explained in the supplementary affidavit filed today. It is also submitted that the applicant is in jail since 12.11.2022 and he undertakes that he will not misuse liberty, if granted.
Learned A.G.A. has opposed the prayer for bail by contending that the innocence of the applicant cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity. The "reasonable grounds" mentioned in Section 37(1)(b)(ii) of NDPS Act mean something more than prima facie ground. It implies substantial probable causes for believing that accused is not guilty of the offence charged and points to existence of such facts and circumstances which are sufficient to hold that accused is not guilty.
However the Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.
Let aforesaid applicant be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;
(ii) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 14.3.2023 SS
Digitally signed by :- SURENDAR SINGH NARANG High Court of Judicature at Allahabad
3 issues framed by the court
Whether to grant bail to the applicant under Section 37 of the N.D.P.S. Act despite his criminal history.
Whether the alleged non-compliance of Section 50 of the N.D.P.S. Act at the bail stage warrants release.
Whether the court can assess the voluntariness of consent regarding recovery of drugs at this stage.
Colour shows how this judgement treated each authority
Union of India vs. Shiv Shankar KeshariExplained¶9
(2007) 7 SCC 798 · Who else cites this
Article 21 of the constitution of IndiaExplained¶10
5 provisions across 3 enactments
Anup Kumar Jaiswal @ Shethi
Siddharth
Surenar Singh Narang
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
